03/28/2017

Gorsuch NodsMike Rappaport

Note: I wrote this post last week at the Liberty Law Blog before I saw Chris Green's post on the same subject. While Chris and I agree (no surprise there), happily the posts do make some different points.

I haven’t been able to catch too much of the Gorsuch hearings, but I have heard some of it. One of the exchanges, which has drawn some attention, involved Senator Amy Klobuchar asking Judge Gorsuch whether a woman President is consistent with the original public meaning:

"So when the Constitution refers like 30-some times to ‘his' or ‘he' when describing the president of the United States, you would see that as, ‘Well, back then, they actually thought a woman could be president even though women couldn't vote?" Klobuchar asked.

"Senator, I'm not looking to take us back to quill pens and horses and buggies," Gorsuch responded.

"But if you could answer that question, it's pretty important to me," she said.

"I'm trying to. Of course women can be president of the United States," Gorsuch said in an exasperated voice. "I'm the father of two daughters, and I hope one of them turns out to be president."

Unfortunately, Judge Gorsuch blew this answer. Sure, he indicated that women could be President, but gave no reason for believing the original meaning allowed it. His answer appeared to suggest that originalist could only believe this by violating their interpretive principles.

Significantly, there was a clear answer to the question. When the Constitution was written (and until recently and even today to an extent), the term “he” had at least two meanings. It could mean a male or it could mean any person, whether male or female. (Similarly, the term “mankind” referred to all people, not just men.)

In fact, some of the constitutional provisions strongly suggest that women were covered by these terms. Consider the Sixth Amendment, which provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Clearly women could be criminal defendants and clearly they would enjoy the right to confront witnesses, to compulsory process, and to the assistance of counsel.

Thus, one need not depart from the text of the Constitution to permit women to be President. One needs only to read the term “he” to have one of the meanings it had at the time of the Constitution. Thus, originalism allows women Presidents. In fact, the modern contemporary meaning view – which holds that words in the Constitution have their modern meanings – might prohibit women Presidents, since today some people argue that"he" only refers to males.